Antonin Scalia–A Giant of Jurisprudence

Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.

More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body.  Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.

And he then skillfully applied this theory in case after the case on the Court. And he did so in way that gave the theory credibility, because in a variety of cases, particularly relating to criminal defendants, he came to results that were at odds with the political preferences of a conservative Republican. To be worthy of the name, any jurisprudence must not be simply politics by another name, and he shamed many of his opponents by showing that his was not.

But his work would have been mostly of interest to academics had he not been such a brilliant writer. With pungent, pellucid prose he was able to reach over the heads of the elites to the American people. And this was a crucial skill, because the bar and academia was dominated not only by people on the left but by legal realists of one kind or another—those who disparaged the constraining power of the language.  His clever words were thus in service of the word itself.

Opponents decried his sharp and energetic style as shrill and bombastic, but Scalia knew well that a modulated moderation would have made no dent in the complacent prejudices of the legal elite, nor would it have attracted any attention in the world.  He was so incisive that he persuaded many law students despite their professors and their prior beliefs. And he did have another weapon to deploy to prevent his opponents from representing him as angry crank—his personal charm and wit. No other justice could inspire both a play and an opera. He was such a large and cheerful character that that he disarmed his critics and made many seem themselves shrill and humorless.

His death leaves a huge void, and given the discontents in the nation, I tremble when I consider the future of the Court. But his work is done and to me the verdict is clear: he did more than any justice in the last hundred years to set constitutional law on a sound path.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. gabe says

    I am neither competent to, nor desirous of, critiquing Mr. Justice Scalia. I accept as correct the above (and many other similar) comments regarding Justice Scalia’s intelligence, wit and influence upon both the Supreme court and legal interpretation. The following brief comments should not be construed as a criticism of the good Justice.

    “Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history.”

    I have no doubt that this is (was) true and correct and further that it is a justifiable acknowledgment of the force of both his intellect and devotion to our constitution.

    I wish it were not so!

    By that I mean to say that when we as a nation have *evolved* our understanding(s) of the role of the Judiciary that it is now viewed as not the final arbiter of constitutionality but rather the first and sole arbiter; when we have cast longing glances to the Court as the determinant of our, the citizens, proper role; when we have abandoned a devotion to our own responsibility and obligation(s) to ensure and sustain a viable, living, breathing Republic; when we have allowed, or compelled the Court, to cabin off from accountability those other and equal Branches of of our tripartite Republican structure; and when we have sought from the Court, or so directed the Court, to define, determine and / or transform our long, and yes, proud traditions, to enable the “received wisdom” of the day via Judicial determinations that mark, or embark us upon, a dramatic shift in both our responsibilities and obligations under the guise of newly recognized rights unknown to or unimagined by those who conceived and crafted our constituent law – then perhaps, just perhaps, we do need a Great Man.

    Again, I wish this were not so. How is it, now, that the “least dangerous” of our Branches has assumed such a paramount role in our Republic; how is it that we will now endure a series of “dueling commentaries” by the *expert* and the *partisan* over what was originally conceived to be the least consequential of our several government functions / institutions? I am just barely old enough to remember when the appointment of a Supreme court Justice was a matter of “passing” interest. Yet, now, we appear to perceive this vacancy as a matter of “supreme” importance to the Republic.

    Regrettably, this is probably true – it IS of utmost importance – but due only to our own lassitude, obtuseness and historical / political ignorance. We have allowed it to become so. All of us on this blog have heard (and may be sympathetic to) the arguments.

    So, yes, Mr. Justice Scalia, a remarkable intellect and good and honorable man is gone. While on the Court, he did as much as anyone in recent memory to “stand athwart” (Progressive) (and sometimes radical conservative opinion)) and History and temper the force of the times.

    I suspect that he would agree that we, as a Republic, would be far better off if there were no need for a Great Man on the Court. Given, however, that the current circumstance would appear to mandate such a need, let us hope that the Great Man we next appoint knows no greater ambition than to dispense with the need for such greatness but rather endeavors to limit both the longing for and the possibility of the Great Man.

    Thank you, Mr. Justice Scalia and now back to the basics of a constitutional Republic of limited scope.

  2. libertarian jerry says

    Gabe……………..The constitutional Republic of “limited scope” that you long for died decades ago and as been supplanted by a mobocracy/Democracy that is leading us unto a nation of tyranny. In essence we no longer live in a nation of laws but a nation of powerful men. A nation of powerful men ensconced in the “Deep State” and,at the same time,in control of the Administrative State that regulates our lives. That is the real power in America. The Supreme Court and their justices are,by and large,nothing but rubber stamps for unjust laws that have plagued us for decades. Despite the efforts of Antonin Scalia to as you say “stand athwart” progressive legislation his actions were just a road bump in the drive to make America into a fascist nation. The power to tax,create money and regulate are powers in place enjoyed by the Administrative State that bares no resemblance,sorry to say,to the founders original intent in the original Constitution. It is much too late for the Supreme Court,with or without Justice Scalia to reverse this reality.

  3. nobody.really says

    But what’s up with Obama? Why must he insist on nominating such a polarizing replacement for Scalia? The nominee is so polarizing that Republicans are falling over themselves to say that they’re going to block the confirmation. Why must Obama insist on such polarizing behavior?

    • gabe says

      Ahhh!!! The NARRATIVE begins, does it not?

      From todays Seattle Times: (paraphrase of front page headline): “GOP opposition Leading Obama to nominate a Liberal”

      Really, I never would have guessed that he needed any help from, as he has described them, the Fascist GOP.

      Expect we will hear more of this narrative from the Lefties AND of course our friend NOBODY!!!!!

  4. Scott Amorian says

    Guys, McGinnis wrote a nice eulogy for a man who just died, who devoted his life to American justice.

    Show a little good taste, please, and save your political stuff for some other post.

    Please.

    • gabe says

      For the record:

      BOTH of my comments were directed at the “politicization” (or the potential for) of a rather sad moment and the passing of a good and honorable man.

      But yes, you are correct. It would be better to simply admire the man and hope for the best in the future.

      seeya

    • nobody.really says

      ….killjoy….

      Oh, very well. In the spirit of the proceedings, let me contribute this, from Ted Cruz’s book, A Time for Truth:

      One famous Scalia story—there are many—occurred during the 1980s, when Reagan was president and considering appointments to the court. Everyone knew that two of the stars on the conservative side, and thus possible nominees, were Robert Bork and Scalia, both on the D.C. Circuit. So one day Scalia was walking in a parking garage at the appellate court when two U.S. marshals stopped him. “Sorry, sir,” one of them said. “We’re holding this elevator for the attorney general of the United States.”

      Scalia pushed past them, entered the elevator, and pressed a button. As the doors closed, Scalia shouted out, “You tell Ed Meese that Bob Bork doesn’t wait for anyone!”

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